It is essential for a plaintiff in any action for passing off to satisfy the court of the existence of goodwill or reputation in a particular trading indicia or "get-up", whether a brand name, trade name or other distinguishing feature, which indicates to the relevant public that the wares or services offered for sale in association with that indicia originate from, or are associated with the plaintiff. In this way the plaintiff's indicia is recognized by the public as distinctive of the plaintiff's goods and services.
The plaintiff does not have to show it is the sole source of the goods or services in question or that consumers know its name or trade mark so long as it can establish the three elements of the tort.
As was illustrated in a recent case involving the term "Vodka", passing off may extend to the misuse of a sufficiently significant descriptive or generic term in relation to goods for which it is inappropriate. The descriptive or generic term must have a definite meaning and attraction to customers. The misrepresentation is actionable by anyone whose goodwill is damaged in relation to their goods to which the term is properly applicable. As a result a generic term with a well defined meaning may be protected despite the fact it is not distinctive in the sense of denoting a specific source.
It is not necessary that the plaintiff carry on business in Canada in order to show goodwill or a reputation which may be protected by way of an action for passing off.
The problem with this requirement is that it can be time consuming and costly to prove the existence of goodwill or reputation.